Peter Allan v Development Allowance Authority [1998] FCA 112 (27 February 1998)

Last Updated: 2 March 1998

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Standing to seek review of decision under Development Allowance Authority Act 1992 - Certificate granted in respect of finance for road project - Applicant for review claims to be resident specially affected by the planned construction work - Whether applicant is a "person who is affected" by the decision to grant the certificate - Whether the applicant's affectation must be in relation to interests to which the legislation is directed.

Development Allowance Authority Act 1992 , ss 93O, 119 and 120

Administrative Appeals Tribunal Act 1975 , s43

PETER ALLAN v DEVELOPMENT ALLOWANCE AUTHORITY

VG496 of 1996

JUDGES: WILCOX, R D NICHOLSON and FINN JJ

PLACE: SYDNEY (HEARD IN CANBERRA)

DATE: 27 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	VG496 of 1996

BETWEEN:	PETER ALLAN Applicant
AND:	DEVELOPMENT ALLOWANCE AUTHORITY Respondent
JUDGES	WILCOX, R D NICHOLSON AND FINN JJ
DATE OF ORDER:	27 FEBRUARY 1998
WHERE MADE:	SYDNEY (heard in canberra)

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by Mansfield J be set aside and in lieu thereof it be ordered the appeal to the Court against the decision of the Administrative Appeals Tribunal be allowed, the decision of the Tribunal of 13 November 1996 be set aside and the appellant's application for review of the respondent's decision be remitted to the Tribunal for determination in accordance with law.

3. The respondent pay the appellant's costs of the proceeding before Mansfield J and on appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	VG496 of 1996

BETWEEN:	PETER ALLAN Applicant
AND:	DEVELOPMENT ALLOWANCE AUTHORITY Respondent

JUDGES:	WILCOX, R D NICHOLSON AND FINN JJ
DATE:	27 FEBRUARY 1998
PLACE:	SYDNEY (heard in canberra)

REASONS FOR JUDGMENT

WILCOX J: I have had the advantage of reading in draft form the reasons for judgment of R D Nicholson J. I agree with the substance of those reasons. However, as we are differing from the view taken by both the primary Judge, Mansfield J, and the Administrative Appeals Tribunal, I wish to make some additional observations.

It seems to me the fundamental defect in the argument of the respondent is that it fails to recognise that there is a distinction between the criteria relevant to a statutory decision and the subject matter of any litigation challenging the validity of that decision.

In the present case the relevant criteria do not have to be discerned from the scope and purpose of the Act; compare the situation discussed in The Queen v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49. The criteria are specified precisely: see s 93O of the Development Allowance Authority Act 1992 . The specified criteria do not include the effect of the proposed infrastructure facility on the amenity of nearby residents, such as Mr Allan. Accordingly, it would not have been competent for the Development Allowance Authority to take residential amenity into account in determining whether or not to grant a certificate under Chapter 2 of the Act. However, that does not deny the obvious fact, using ordinary language, that a person whose residential amenity is likely to be diminished by the construction of the facility is "affected" by a decision to grant the certificate. Without a certificate, the construction would probably not proceed; with a certificate, it must: see s 93R(b).

The Act makes no provision for public notice of the Authority's decisions; so a person in Mr Allan's position may learn of the decision only indirectly and belatedly. The Authority's sole obligation regarding notice is to inform the applicant of its decision: see s 93X(8). However, this cannot be regarded as indicating a legislative intention that the words "person who is affected", in s 119(1), should be read as meaning only the applicant. If that had been intended, the drafter would surely have opened s 119(1) with the words "the applicant". Moreover, the point made by R D Nicholson J about later applicants is compelling.

R D Nicholson J has referred to other suggested reasons for imputing to Parliament an intention that the word "affected" have a special or limited meaning. I agree with him that none of those suggestions have substance.

Once it is accepted that the word "affected" is used in s 119(1) in its ordinary sense, a question of degree arises. The seven kinds of infrastructure facility, in relation to which a certificate may be granted, are all major works. A decision to grant or refuse a certificate in relation to such a facility is likely to affect many people, even if only as consumers or taxpayers. If the latter type of affection had been intended to trigger an entitlement to apply for review of a decision, there would have been little point in limiting standing at all; Parliament might as well have allowed any person to seek review. Plainly something more was intended and I agree with Mansfield J and the Administrative Appeals Tribunal that the "something more" is the special interest required of competent plaintiffs in court proceedings by cases such as Australian Conservation Foundation v The Commonwealth of Australia ("ACF") (1979) 146 CLR 493 and Onus v Alcoa of Australia Limited [1981] HCA 50; (1981) 149 CLR 27. But I do not agree with their further stipulation that the special interest be related to the objects, or the scope and purpose, of the legislation pursuant to which the decision was made. As this is the critical point in the case, it is desirable to refer to authority.

I will start with Boyce v Paddington Borough Council [1903] 1 Ch 109, the seminal decision in this area of the law. That case was concerned with a churchyard that the defendant was required by statute to maintain as open space "free from buildings", for public exercise and recreation. The plaintiff erected a block of flats upon adjoining land. In order to prevent any future argument that the open space had become burdened with a prescriptive obligation to allow light to the plaintiff's building, the defendant instructed its surveyor to construct a screen or hoarding obstructing the light to the building's windows. The plaintiff sought to restrain construction, arguing any hoarding would be a "building" within the meaning of the legislation governing the churchyard. R D Nicholson J has set out the famous passage at 114 in which Buckley J recounted the circumstances in which a plaintiff may sue without joining the Attorney General. Thereafter Buckley J considered the merits of the case. He held the plaintiff's building had no right to light over the open space, so the erection of a hoarding did not infringe any private right of the plaintiff. In relation to the second leg of the standing rule, Buckley J held a mere hoarding was not a "building" within the meaning of the relevant legislation; in its context, the word "buildings" referred to "erections which would cover some part of the ground, as the enlargement of a church would do". So the defendant's threatened action would not be unlawful. There is no reason to doubt that, if he had held otherwise, Buckley J would have granted the plaintiff an injunction, and this notwithstanding that the effect of a hoarding which concerned the plaintiff (obstruction of light to his windows) was not a matter to which the legislation was directed (the maintenance of open space for public exercise and recreation). Buckley J's decision was reversed by the Court of Appeal but restored by the House of Lords: see Paddington Corporation v Attorney General [1906] AC 1.

In ACF at 527 Gibbs J reformulated the second leg of the standing rule propounded by Buckley J so as to refer to a person "having a special interest in the subject matter of the action". At 530 Gibbs J explained what he meant by "special interest":

"... an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails."

It will be noted Gibbs J did not suggest that what constitutes a special interest is to be determined by reference to the scope and purpose of the legislation under which the illegality is alleged to have occurred; the question is whether the plaintiff will gain some advantage, other than general satisfaction, if the action succeeds or suffer some disadvantage if it does not. Gibbs J held against ACF's claim of standing because it did not have a special interest, in this sense, in the impugned foreign exchange approval. If it had been an answer to the standing claim to say the concern felt by the Foundation about the environmental effects of the proposed tourist resort was extraneous to the scope and purpose of the Banking (Foreign Exchange) Regulations, as it plainly was, the case could have been disposed of extremely briefly. But that answer was not suggested.

Onus was decided by a seven-member bench of the High Court. It is apparent that, with the possible exception of Aickin J, all the Justices adopted the concept of "special interest" adumbrated by Gibbs J in ACF: see 36 (Gibbs CJ with whom Mason J agreed), 42 (Stephen J), 44 (Murphy J), 60-62 (Wilson J) and 69-71 (Brennan J). Some Justices expatiated on its meaning. At 36 Gibbs CJ spoke of the appellants having "an interest in the subject matter of the present action which is greater than that of other members of the public and indeed greater than that of other persons of aboriginal descent who are not members of the Gournditchjmara people". He said they "would be more particularly affected" than other people by destruction of the relics sought to be protected. Stephen J at 42 explained that the criterion of "special interest" involved "a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter". Murphy J said at 44: "It is sufficient for standing that a plaintiff have an interest exceeding that of members of the public generally in preventing breach of a public right or in securing the performance of a public duty". Brennan J at 71 referred to the Boyce exception as including "cases where the plaintiff has no private right of action, though he has an interest in the subject matter of the action which is special in comparison with the interest of the public at large."

The High Court's most recent consideration of standing was in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of State Australia ("SDAEA") [1995] HCA 11; (1995) 183 CLR 552. At issue was the validity of Sunday trading certificates of exemption granted by the Minister to certain Adelaide shops. Some members of the appellant organisation were employed in Adelaide shops. In a joint judgment, a five-member bench of the High Court overruled the respondent's objection to the appellant's standing. After referring to ACF and Onus the Court said at 558:

"The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest.

In this instance the subject matter of the litigation is shop trading hours in the Central Shopping District. The Minister contends that the change in shopping hours which the certificates of exemption are intended to effect will affect the whole community in various ways and that the shop assistants concerned have no special interest in that subject matter. However, it is clear to our minds that the shop assistants employed in the Central Shopping District have an interest in the trading hours of the shops in which they are employed which is different from and greater than that of other members of the public. Obviously no shop assistant is uniquely affected by a change in shopping hours, but it is sufficient if those concerned have a special interest as a particular class."

In none of the High Court cases is there any suggestion that the concern that amounts to a special interest must be the same concern as that which motivated the legislature in enacting the legislation out of which the action arose; although, of course, the two may coincide, as in Onus. It is not clear from the report whether the Sunday trading legislation under consideration in SDAEA was enacted for the purpose of limiting shop assistants' working hours, a matter about which the appellant had a concern, or Sabbath Day observance, about which it presumably did not. The point is the High Court did not find it necessary to consider that question; it was enough that members of the appellant organisation had an interest in the validity of the certificates that transcended that of the public generally.

Both the Tribunal and Mansfield J placed considerable reliance on the Full Court decision in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Limited [1994] FCA 996; (1994) 49 FCR 250. As Burchett J made clear at 264-265, the actual decision in that case turned on a very narrow point, arising out of the terms of the decision-maker's letter rejecting SmithKline's application for review of a decision to register Alphapharm's product. However, Burchett J went on to consider whether, as a matter of law, SmithKline had a right to seek review and concluded it did not. At 266 he held that, having regard to the terms of the relevant Act, the Therapeutic Goods Act 1989 , "the respondent had no interest of its own beyond that which it shared with the wider public". Davies and Gummow JJ also determined the case entirely by reference to the terms of the statute; so the decision in the case does not govern this case. However, Davies and Gummow JJ each made observations that the Tribunal and Mansfield J interpreted in such a way as to cause them to narrow substantially the standing rule accepted by the High Court.

Davies J referred to an American concept called "zone of interests". This concept was apparently first applied by the United States Supreme Court in two cases decided on 3 March 1970: Association of Data Processing Service Organizations Inc v Camp [1970] USSC 56; 397 US 150 (1970) and Barlow v Collins [1970] USSC 57; 397 US 159 (1970). In Data Processing a number of companies engaged in providing businesses with data processing services sought to challenge a ruling of the Comptroller of the Currency permitting banks to provide similar services. The Supreme Court upheld their standing to maintain the action. The majority opinion was delivered by Douglas J who noted (at 152) that the plaintiff alleged "that the challenged action has caused him injury in fact, economic or otherwise". He commented (at 154) that, where statutes are concerned, "the trend is toward enlargement of the class of people who may protest administrative action". He referred to decisions upholding the standing of an existing entrepreneur to challenge the entry of a newcomer into the business and said this was the instant case. He referred to s 4 of the Bank Services Corporation Act of 1962, which prohibited banks from engaging in any activity other than the performance of bank services, and commented at 156 that the section "arguably brings a competitor within the zone of interests protected by it".

Douglas J also wrote the majority opinion in Barlow v Collins. That case concerned the standing of a group of tenant farmers to challenge the validity of an amendment to regulations made under the Food and Agriculture Act of 1965. The petitioners were eligible for payments under that Act and contended they were disadvantaged by the amendment. It was not shown any action had been taken under the amendment that directly affected their legal interests. Nonetheless, the Supreme Court upheld their claim of standing. At 164-166 Douglas J put three propositions. First, the petitioners "have the personal stake and interest that impart the concrete adverseness required by Article III" of the United States Constitution. That Article confers judicial power on federal courts. Second, "the tenant farmers are clearly within the zone of interests protected by the Act". He explained why this was so, with reference to the terms of the relevant legislation. Third, "judicial review of the Secretary's action is not precluded" by the legislation.

Brennan J (with whom White J agreed) wrote a separate opinion covering both cases. He concurred in each result but dissented "from the Court's treatment of the question of standing to challenge agency action". At 167-169 he said:

"The Court's approach to standing, set out in Data Processing, has two steps: (1) since `the framework of Article III ... restricts judicial power to "cases" and "controversies",' the first step is to determine `whether the plaintiff alleges that the challenged action has caused him injury in fact'; (2) if injury in fact is alleged, the relevant statute or constitutional provision is then examined to determine `whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'

My view is that the inquiry in the Court's first step is the only one that need be made to determine standing."

Brennan J went on to agree that, before the plaintiff is allowed to argue the merits, it is necessary to canvass the relevant statutory materials. But he said this was done "not to determine standing, but to determine an aspect of reviewability, that is whether Congress meant to deny or to allow judicial review of the agency action at the instance of the plaintiff" (original emphasis). In a footnote he added:

"Reviewability has often been treated as if it involved a single issue: whether agency action is conclusive and beyond judicial challenge by anyone. In reality, however, reviewability is equally concerned with a second issue: whether the particular plaintiff then requesting review may have it. ... Both questions directly concern the extent to which persons harmed by agency action may challenge its legality." (Original emphasis).

It seems the zone of interests concept has not travelled well in America. Writing in 1982, Professor Kenneth Davis said that, as of that year, "the `zone' test is sometimes used, but most of the time it is not, and no guides exist as to whether or when it is used": Davis Administrative Law Treatise (2nd ed) Vol 4 para 24.17. He went on to criticise the test, saying (at 275-276):

"(a) The test is faulty in failing to take into account nonstatutory and nonconstitutional interests that deserve continuing common-law protection. A plaintiff who is injured in fact by the governmental action should not have to show also that the interest he asserts is within the zone of interests `to be' regulated by the statute or constitutional guarantee. For instance, under a statute requiring government agencies to `purchase all major requirements of helium' from the Secretary of the Interior, the Secretary issued a regulation requiring contractors with government agencies to purchase from the Secretary. A producer whose sales were reduced by the regulation was properly held to have standing. Air Reduction Co. v. Hickel, 420 F.2d 592 (D.C. Cir. 1969). Yet the producer was neither `to be protected' nor `to be regulated' by the statute and would therefore be without standing under the `zone' test."

Professor Davis went on to cite other decisions inconsistent with the application of a "zone of interests" test. He referred to the nature of the Supreme Court's "guidance to lower courts and to litigants on the `zone' test" up to 1982, stating the Court had done nothing "to clarify the meaning of the test, even though many other courts found the meaning unclear" and had failed to mention it in 27 opinions on standing in the period 1970 to 1982.

Professor Davis concluded his discussion of the zone of interests test by saying at 279-280:

"If the Court's action is what counts, the Court has mostly adopted the Brennan-White dissenting view in Data Processing that the sole test for standing should be `injury in fact.' But that conclusion has to be called uncertain, despite the analysis above that shows the test to be analytically faulty, contrary to much case law the Court could not have meant to overrule, cumbersome, artificial, and contrary to congressional intent in the Administrative Procedure Act.

The test is sometimes the law and usually is not. The Court itself cannot know whether and when it is the law. The Court surely has an unfulfilled obligation to lower courts and to litigants to say what it intends.

Something resembling the `zone' test may often be sound. A statute or rule designed to benefit a particular class may not be asserted by nonmembers of the class. A rule requiring secrecy of testimony, designed to benefit witnesses, may not be invoked by a person investigated. ... An order against a school board, designed to outlaw racial practices, could not be invoked in a non-racial context. ... One may not on environmental grounds invoke the Public Buildings Amendments of 1972, which were designed to provide an economical and efficient system of using government property. ... All such decisions would be the same without a verbal formulation of the `zone' test.

In view of the Supreme Court's clear inconsistency in using the `zone' test in a few opinions and ignoring it in many opinions, what should a lower court do? A good answer might be: It should follow what the Supreme Court usually does, that is, it should not use the test unless it finds a special reason for doing so. What a lower court should not do is to follow blindly the few Supreme Court opinions that use the test." (Original emphasis)

Against this background, it is surprising that Davies J was attracted to the zone of interests test. But he was. In Alphapharm at 259, his Honour referred to Professor Davis' work. He commented that Professor Davis "tends to reject" the test but said at 260:

"However, such a test may be relevant under the law of the United Kingdom and of this country. In US Tobacco at 529, the Court said:

`The nature of the interest required in a particular case will be influenced by the subject matter and content of the decision under review.'

This must be so with respect to the phrase `interests are affected', when used in a statute which provides for the administrative review of an administrative decision. In such event, the review, which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute. The term `aggrieved', when used in the context of judicial review, may have a different connotation, for the object of judicial review is to ensure that the law is observed."

The only authority cited by Davies J for his opinion that the zone of interests test may be relevant under United Kingdom and Australian law was the quoted sentence from US Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520. However, (an error repeated by Mansfield J in this case) that sentence was not a statement by the Full Court in US Tobacco. It was a sentence in a long passage from a judgment of Davies J himself that the Full Court quoted without comment. More importantly, there is no logical reason for saying the use of the statutory formula "interests are affected" necessarily imports a limitation on the nature of the relevant interests. The formula aptly describes the concept of "special interest" adumbrated by Gibbs J in ACF, where there was no such limitation. There might have been other indications that Parliament intended a restricted standing right under the Therapeutic Goods Act 1975 , as all the Judges thought; that is another matter.

After referring to various statutory standing formulae, Gummow J commented that, in each case, "the content of the terms `affect' and `interest' are to be seen in the light of the scope and purpose of the particular statute in issue". That statement is unexceptional; every term used in a statute has to be considered in context and with recollection of the scope and purpose of the statute. Unlike Mansfield J, I do not read this statement as importing any limitation on the nature of interests capable of founding a standing right. It is perhaps significant that Gummow J did not refer to the zone of interests concept or use that term.

I respectfully agree with Mansfield J that "ultimately the question to be answered involves the proper construction of s 119" of the Development Allowance Authority Act; in particular the words "person who is affected by a reviewable decision". Mansfield J was prepared to assume Mr Allan "is a person who has suffered `special damage' ... that is, damage beyond that suffered by members of the public generally by reason of the overall decision to proceed with the City Link project, including the widening of the Tullamarine Freeway". On that assumption, he was in my view clearly a "person who is affected" by the Authority's decision. Of course, assumption is not enough. There needs to be a finding by the Tribunal about the matter. Although there would seem to be little dispute about the relevant facts, the Tribunal has not yet made a clear finding about Mr Allan's position. The case must be returned to the Tribunal for that purpose. If the Tribunal makes a finding along the lines of Mansfield J's assumption, it would follow that Mr Allan is entitled to seek review of the Authority's decision to grant a certificate in respect of the project. The review would be confined to a reconsideration of the question whether the proposed borrowing satisfies the criteria specified in s 93O of the Act. Mr Allan's special interest would entitle him to trigger a review but would be irrelevant to the criteria for review.

For the purpose of reviewing the Authority's decision, the Tribunal has all the Authority's powers and discretions: see s 43(1) of the Administrative Appeals Tribunal Act. This enables it to do everything necessary to dispose finally of Mr Allan's application for review; there would be no need for the matter to be returned to the Authority. If the Tribunal, considering the matter in the light of this decision, determines Mr Allan is entitled to seek review, it ought then to consider and determine the s 93O issue.

The appeal should be allowed and the decision of Mansfield J set aside. In lieu thereof, it should be ordered that the appeal to the Court against the decision of the Administrative Appeals Tribunal be allowed, the decision of the Tribunal dated 13 November 1996 be set aside and the appellant's application for review of the respondent's decision be remitted to the Tribunal for determination in accordance with law. The respondent should pay the appellant's costs here and below.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 27 February 1998

Counsel for the Applicant:	P Mees
Solicitor for the Applicant:	Simon Northeast
Counsel for the Respondent:	C Gunst
Solicitor for the Respondent:	Australian Government Solicitor

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 496 of 1997

BETWEEN:	PETER ALLAN Appellant
AND:	DEVELOPMENT ALLOWANCE AUTHORITY Respondent

JUDGE(S):	WILCOX J R D NICHOLSON J FINN J
DATE:	27 February 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

R D NICHOLSON J: This is an appeal from the judgment of a judge of this Court dismissing an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 13 November 1996. The Tribunal decided the appellant was not a person affected by a decision of the respondent to grant infrastructure borrowing certificates under Chapter 3 of the Development Allowance Authority Act 1992 (Cth) ("the DAA Act") in respect of the Melbourne City Link Project ("the decision"). The Tribunal therefore concluded it lacked jurisdiction to determine his application for review.

The circumstances from which the decision arose are as follows.

In 1995 the Victorian Parliament passed the Melbourne City Link Act 1995 (Vic) ("the City Link Act"). It provided for the construction of new roads, tunnels and bridges for the movement of vehicular traffic in the Melbourne metropolitan area ("the City Link project"). One part of the new roads included the widening of the Tullamarine Freeway. The appellant's home is approximately 200 metres from that freeway and above it. The proposed widening of the freeway would be to within about 100 metres of his home.

On 19 and 30 January 1996 the respondent decided to issue infrastructure borrowing certificates under Chapter 3 of the DAA Act. The purpose of the borrowings was to fund the City Link project.

As far as the appellant is concerned the construction of the City Link project, or at least that part of it near his home, will have a severe adverse effect on his amenity. He complains he will be affected by increased traffic noise due to proximity, to greater traffic usage, to faster traffic movement, and to different traffic usage of the Tullamarine Freeway. He also complains his view will be degraded or blocked. He is also concerned the particular part of the work affecting his property will increase the levels of air pollution at and near his home due to greater and differing traffic movement and to its closer proximity.

The appellant learnt of the decision of the respondent to issue certificates by reading a local newspaper report concerning it on 26 February 1996. On 13 March 1996 he requested the respondent to reconsider its decision. The respondent replied by letter dated 11 April 1996 informing the appellant it had been concluded he was not a "person who is affected by" the decision within the meaning of s 119(1) of the DAA Act. Accordingly it was considered there was no basis on which the decision could be validly reconsidered.

On 10 May 1996 the appellant appealed to the Tribunal.

The DAA Act

The decision of the respondent which the appellant sought to have reconsidered was one made under s 93O of the DAA Act. Subsection 93O(1) provides that, subject to subs (2) and s 23P, the Development Allowance Authority ("the DAA") must issue the certificate if it is satisfied the proposed borrowing is an infrastructure borrowing and the relevant dates are reasonable. Section 23P requires the DAA to obtain an undertaking from the applicant to comply with the conditions. Subsection 93O(2) provides:

"If:

(a) the borrowing is a direct infrastructure borrowing; and

(b) there is in force, at the time at which the DAA proposes to issue the certificate in relation to the borrowing, a law that the DAA is satisfied will prohibit or restrict the operation of other facilities in competition with the infrastructure facilities concerned;

the DAA must not issue the certificate."

The appellant's case sought to invoke the application of this limitation on the powers of the respondent on the ground that there was in force the City Link Act which would prohibit or restrict the operation of other facilities in competition with the City Link project.

The DAA Act contains provisions relating to development allowances and to infrastructure borrowings. The latter provisions are contained in Chapter 3, ss 93A to 93ZG, which were inserted into the Act by the Taxation Amendment Laws Amendment (Infrastructure Borrowings) Act 1994 (Cth).

Section 93A states "the object of this Chapter in the infrastructure borrowings provisions of the Income Tax Assessment Act 1936 is to provide tax incentives for genuine private sector investment in publicly accessible infrastructure facilities and related facilities."

Section 93B sets out a simplified outline of the scheme of the Chapter. This involves a person applying to the DAA for the issue of a certificate in relation to a proposed borrowing that the person considers to be an infrastructure borrowing. If so satisfied, the DAA will issue such a certificate, it being a condition of the issue of the certificate the holder must use the money borrowed in the way proposed in the person's application and comply with certain other requirements. An example of how the provisions of the chapter work is set out in s 93C. It is apparent from Item (7) in s 93C the consequence of the issue of the certificate is that "the borrowing, construction and use of the tollway [the example given] all go ahead as planned."

As the primary judge stated it, the effect of the provisions is on the application of a person, the DAA may issue a certificate in relation to a proposed borrowing if it is satisfied the borrowing is an "infrastructure borrowing" and that certain other criteria are met. A borrowing will only be an infrastructure borrowing if it is intended to be used for one of seven kinds of infrastructure facility identified in Item 93L of the DAA Act. This includes a land transport facility including a road in Australia to be used for the transport of the public or their goods at a charge to them. The other kinds of infrastructure facility identified are air transport, sea port, electricity generation, transmission or distribution, gas pipeline, water supply and sewerage or waste water facilities.

The money borrowed must be used in the way proposed. The effect of the certificate is that, upon the borrowing, interest paid to the bond holders is exempt from income tax or rebatable. The interest is not an allowable deduction for the borrower.

The application for a certificate is made under s 93N. The certificate is issued by the DAA under s 93O.

The primary judge attached some significance to the provisions of s 93O(1) in that it obliged the DAA to issue a certificate in the circumstances of the subsection. He pointed out the only other provision in Ch 3 which might affect the capacity of the DAA to grant a certificate is s 93Y. That provides for the Commonwealth to limit the intended maximum cost to it for a financial year of the taxation consequences of the issue of certificates. The process is prescribed by regulation fixing that maximum cost, and then by Ministerial direction to the DAA not to accept applications for certificates during a specified period.

Reviewable decisions

Section 93AA of the DAA Act defines a "reviewable decision" to mean a decision of the DAA (inter alia), under Pt 3 of Ch 3. That is the part into which s 93O of the Act falls.

The relevant review procedures by which the appellant sought to be heard are those set out in ss 119 and 120 of the DAA Act which read:

" 119.(1) A person who is affected by a reviewable decision may, if dissatisfied with the decision, by notice given to the DAA within:

(a) the period of 21 days after the day on which the decision first comes to the attention of the person; or

(b) such further period as the DAA allows;

request the DAA to reconsider the decision.

...

(3) Upon receipt of the request, the DAA must reconsider the decision and may, subject to subsection (4), confirm or revoke the decision in such manner as the DAA thinks fit.

(4) If the DAA does not confirm, revoke or vary a decision before the end of the period of 40 days after the day on which the DAA received the request under subsection (1) to reconsider the decision, the DAA is taken, at the end of that period, to have confirmed the decision under subsection (3).

...

120.(1) Applications may be made to the AAT for review of decisions of the DAA that have been confirmed or varied under subsection 119(3).

(2) If, because of the operation of subsection 119(4), a decision is taken to be confirmed, section 29 of the Administrative Appeals Tribunal Act 1975 applies as if the prescribed time for making application for review of the decision were the period;

(a) commencing on the day on which the decision is taken to have been confirmed; and

(b) ending on the 28th day after that day.

..."

The Tribunal's decision

As recounted by the primary judge the Tribunal decided:

* the decision to issue the certificate under s 93O is a reviewable decision for the purposes of ss 119 and 120 of the DAA Act.

* the word "competition" in s 93O(2) of the DAA Act should be given its ordinary meaning, and so the applicant was not a person who was or would be in any relevant way in competition with the proposed tollway.

* the degree of adverse affection complained of, having regard to the purposes of the DAA Act, is too remote for the applicant to be considered as a person whose interests are affected by the decision of the DAA to grant the certificate, so as to allow him to have a right of review to the Tribunal; thus the applicant is not a person affected by a reviewable decision, and the Tribunal did not have jurisdiction to hear and determine his application for review.

The primary judgment

After describing the provisions of the DAA Act and related legislation, the primary judge set out the nature of the decision under review and the Tribunal's decision in relation to it. The grounds of appeal before him were confined to the sole point of whether the appellant was a person who, within the meaning of s 119 of the DAA Act, is "affected" by the decision referred to or, within the meaning of s 27(1) of the AAT Act, is a person "whose interests are affected" by the decision. In short he described the issue as one of standing.

The principal contention before the primary judge was the appellant had a special interest in the decision because he suffers special damage by reason of it: Boyce v Paddington Borough Council [1903] 1 Ch 109 and Australian Conservation Foundation v Commonwealth (1990) 146 CLR 493. The contentions for the appellant disputed that the "zone of interest" test discussed in Alphapharm Pty Ltd v Smith Kline Beecham (Australia) Pty Limited [1994] FCA 996; (1994) 49 FCR 250 was a relevant test or a necessary condition for standing. Alternatively it was contended that in any event the appellant fell within the "zone of interest" of s 93O of the DAA Act as its zone of interest encompassed "the whole community".

After examination of relevant authorities the primary judge said the question ultimately is what Parliament intended by the expression "a person who is affected by..." the decision as those words are used in s 119 of the DAA Act. His Honour accepted that if the appellant lacked standing under s 119 to request the DAA to reconsider the decision, he had no standing to seek review of the DAA's refusal to reconsider the decision by the Tribunal.

For the purposes of his reasons the primary judge assumed the appellant was a person who had suffered "special damage" as that expression was used by Buckley J in Boyce at 114 - that is, damage beyond that suffered by members of the public generally by reason of the overall decision to proceed with the City Link project, including the widening of the Tullamarine Freeway. However, he came to the conclusion the expression in s 119 did not encompass the appellant. He gave a number of reasons for that conclusion.

In the course of reviewing authorities the primary judge had rejected the proposition that "special damage" is sufficient to grant standing. He reached the view "special damage" does not exist except in the context of a particular enactment and of the decision made under it so that it does not establish a greater or different proposition to the view which he found reflected in the authorities that the proper construction of the relevant legislation will reveal whether, in a particular instance, the person concerned falls within the expression in the enactment which grants standing.

He characterised Ch 3 of the DAA Act as containing a series of provisions designed to encourage or facilitate investment in, and therefore the progression of, substantial infrastructure projects. There are only seven types of facilities which may qualify as such under it. The provisions had the effect the project would not proceed without accommodating provisions addressing the range of planning, environmental, social and similar considerations. He said such provisions contained within them the circumstances in which, and the extent to which persons, including persons such as the appellant, may seek to participate in those primary processes or in review of those processes. He continued:

"But I think it is not likely that the Parliament contemplated by s 119 that a person who had chosen not to participate in those primary determinative processes with respect to the infrastructure project, or who had done so but without succeeding in causing the project to be prohibited or to be varied to that person's satisfaction, should by reason of special interests of the nature claimed have another opportunity to achieve indirectly what that person had not achieved directly. It was not suggested that the applicant's `special interest' had any relevance whatsoever to the DAA decision, or to its requested reconsideration. The ground of review specified was only in terms of s 93O(2)(b) of the DAA Act. The `special interest' was no more than a vehicle to get to the gate where the attack was to be pursued on that other ground in which the applicant had no real interest at all.

The primary judge said the remaining reasons for his conclusion flowed more specifically from the provisions of the DAA Act. He inferred from the absence of any provision in the Act requiring public notification of the initial application for the certificate or any provision requiring notification to anyone other than the applicant or applicants of the decision granting or refusing it, and for the requirement that reasons are required to be given to an unsuccessful applicant or applicants, that there was an intention the initial decision-making process was intended to be a private one so that persons such as the appellant were not intended to have any right to participate.

He considered that was confirmed by the fact the DAA's role is a confined one in the decision required to be made.

Furthermore, the primary judge said the right of re-consideration is given to a person affected by a reviewable decision to be exercised within 21 days after the decision first comes to the attention of the person seeking review. In a case such as the appellant's, notice of the decision may have come only after the infrastructure project was substantially advanced. The primary judge considered such considerations compelled him to the view that s 119 is, in relation at least to Ch 3 of the DAA Act, intended to provide review only within a much more structured system.

Finally, the primary judge relied upon the provisions of subss 119(4) and (5) and subss 121(1) and (2). These he considered did two important things. Firstly, they oblige the DAA upon re-consideration of a decision to confirm, revoke or vary it, and to give notice of the decision together with reasons to the appellant for review. Secondly, they entitle a person dissatisfied with the decision of the DAA upon re-consideration of a decision, which has resulted in confirmation or variation of the decision, but importantly not in revocation of it, to seek a further review before the Tribunal. He considered if the appellant's contentions were correct then those provisions leave the initial applicant for grant of the certificate out of the loop of the review process, in that such persons are not entitled to be notified of the decision on re-consideration or to reasons for it. Additionally, if re-consideration has led to the revoking of the initial decision, that person is given no right to seek review by the Tribunal. In his opinion neither of those consequences could have been intended by Parliament. He considered it more likely, and consistent with the other indications in the DAA Act, that persons such as the appellant were not contemplated as being entitled to seek review of a decision under s 119 of the DAA Act.

As a further basis for his reasons the primary judge observed the decision under complaint is not the decision directly causing the appellant the special damage of which he complains. The decision primarily causative of that asserted special damage was, said the primary judge, the decision to proceed with the City Link project, or perhaps the decision to proceed with any particular parts of that project in a particular way. He continued:

"The decision under complaint is not entirely removed from that process. Under the City Link Act Sch 1, cl 2.7(d)(iii), the certificate under the DAA Act was a condition precedent to the overall project proceeding. Clearly, the grant of the certificate was a consideration to those who conceived and promoted the City Link project. I do not think that that is, in itself, sufficient to establish the necessary special interest, or to paraphrase the expression used by Brennan J (as he then was) in McHattan (above), to establish that the decision to grant the certificate immediately and directly affected the applicant. Of course, that expression is not a refined term of art, but a description as a matter of practical common sense that the decision under complaint was not a relevant cause of the applicant's claimed special damage. The decision under complaint has two immediate and direct consequences, neither of which in any sense caused the applicant to suffer the asserted special damage. They are:

* that the promoters of the project can obtain finance for the project by a bond issue upon certain terms which they could not otherwise offer, and

* less immediately, that those who advance funds to the bond issue and receive interest in respect of those advances will not have to pay tax on that interest even though it would otherwise be taxable income.

Neither the decision under complaint, nor its implementation by those two means, in any relevant way amounts to an interference with a public right either at all or in such a way to cause the applicant special damage peculiar to himself. More correctly, the applicant does not have a relevant special interest in the decision. Even applying the expression of the test of standing of Buckley J in Boyce (above), without having regard to the terms of the DAA Act itself, I do not think the applicant has standing to challenge the present decision under complaint."

In the course of his reasons the primary judge said he did not, in respect of his ruling concerning the qualification of the appellant as a person affected, foreclose any other person than an unsuccessful applicant or a partially successful applicant for a certificate under s 93O of the DAA Act from qualifying as a "person affected by" a decision made under that section for the purposes of s 119.

The primary judge concluded his reasons as follows:

"It will be a question for each case whether the special interest asserted is of sufficient practical import in the circumstances to qualify the person asserting it to challenge the decision complained of. That question must be answered in the context of the legislation within the framework of which the decision is made. By reference to that legislation, in my view the applicant does not qualify as a `person affected' under s 119 of the DAA Act. In my judgment that conclusion is apparent whether one looks only to the legislation for the answer to the question, or whether one looks to the more general principles enunciated by the High Court and applies them in the context of the decision made under the DAA Act."

Special damage as qualification for standing

The appellant's grounds initially contend the primary judge erred in holding the test for standing is, in effect, more restrictive under the DAA Act than at common law in rejecting the proposition that special damage does not exist except in the context of a particular enactment. The expression of the common law rule upon which the appellant relies is that stated in Boyce at 114:

"A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reasons that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right."

Boyce was the owner of a block of flats which abutted a public open space on which it was proposed to erect a hoarding which would block the light to Boyce's flats. Buckley J held although Boyce had no private legal right to free passage of light over the open space he had standing to seek an injunction because he suffered "special damage" through the potential adverse effect.

The history of Boyce's case in Australian cases relating to standing is well known and not in any doubt. The test of special damage is to be applied in terms of finding whether the claimant for standing has "a special interest in the subject matter of the action": Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493 at 527 (Gibbs J), 541 (Stephen J) and 547 (Mason J) (`the first ACF case); Onus v Alcoa of Australia Ltd (1982) 149 CLR 29 at 35-36 (Gibbs CJ), 41 (Stephen J) and 74 (Brennan J).

In the most recent High Court decision on standing, The Shop Distributive and Allied Employees Association v Minister for Industrial Affairs for the State of South Australia [1995] HCA 11; (1995) 183 CLR 552, the judgment of the Court accepted the test of standing was whether to prevent the alleged violation of a public right the plaintiffs could establish the existence of a special interest in the subject matter of the litigation (at 558).

In Onus at 70, Brennan J referred to a number of cases in which interests had been held sufficient to give standing and which may not have satisfied the Boyce test but fell squarely within the concept of "special interest" expressed in the first ACF case. These concerned land use impacts on adjacent land owners: Vanderwolf v Warringah Shire Council [1975] HCA 17; [1970] 2 NSWLR 272; Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289 and Howes v Victorian Railway Commissioners [1972] VR 103 at 124.

It is apparent from these decisions the concept of special interest is wider than the concept of special damage. While the existence of special damage is not a necessary element to establish a special interest, it is not precluded as a matter of law from establishing the special interest. So it was that in his judgment in Alphapharm at 259, Davies J, in considering the general principles covering standing, including the phrase "interests are affected", said:

"Relevant proprietary and financial interests have traditionally been considered to be sufficient. See eg Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 54 FLR 421; Brodbridge of v Stammers (1987) 16 FCR 296; New South Wales Fish Authority v Phillips [1970] 1 NSWR 725; Association of Data Processing Service Organisations v Camp [1970] USSC 56; 397 US 150 (1969)."

The law therefore requires the assessment of affection to include a judgment of the effect of special damage if such is present.

So far as the primary judge considered this was open to exclusion in a statute providing a specific right of review, he was clearly correct. By express enactment, Parliament could exclude such damage from the factors relevant to affection. Without finally deciding the point (because it was not here argued) it would seem clear language would be required to achieve a displacement of that dimension of the normal rule.

If what the primary judge intended was that the issue of affection should be determined in the context of the relevant public statutory duty and the nexus between the alleged violation of that duty and the circumstances said to give the person the special interest in the subject matter of the action, he was also correct.

What the primary judge said was the circumstances of special damage must be considered in the particular statutory context. In my view he is not to be understood as having excluded special damage except as a consequence of statutory construction. In that he did not fall in error.

Zone of interest test

The grounds of appeal also assert the primary judge erred in using the zone of interest principle to exclude the appellant from standing.

There can be no error in relying on a so-called zone of interest principle to measure the degree of affection - cf Alphapharm at 261 and 267 per Davies J; at 264 and 266 per Burchett J and 272 per Gummow J; US Tobacco at 529 and 530 - provided the ultimate test remains whether "the person whose interests are affected must have an interest other than that which attaches to members of the general public and other than that of a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed": Davies J in Alphapharm at 258.

The grounds also contend the primary judge erred in holding the appellant did not fall within the zone of interest of the DAA Act.

This contention is put on the basis the primary judge in this case has fallen into what the appellant contends was the error made by Davies J in Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70 ("the second ACF case"). There, Davies J held that "a person having an interest in the effect of logging inside the National Estate on property outside the National Estate did not have standing because his interest in the National Estate was little more than that of any ordinary member of the community." That passage was criticised by Wilcox J in Yates v Keating [1990] FCA 432; (1990) 98 ALR 21 in reasoning uninterfered with on appeal and subsequently endorsed by Sackville J in North Coast Environment Council Inc v Minister for Natural Resources (No 2) [1994] FCA 1556; (1994) 55 FCR 492 at 510. The correct approach, it is said for the appellant, is it is sufficient there be a disadvantage both greater than, and different in kind from, the disadvantage suffered by ordinary members of the community: Shop Distributive and Allies Employees Association at 558. For reasons given below, I consider there is merit in this contention.

Standing under the AAT Act

In the course of his reasons the primary judge said:

"In legislation providing a general right of review of administrative decision making, whether judicial review or further administrative review, it will be generally appropriate to recognise standing premised upon expressions such as `person aggrieved' or `person whose interests are affected' by reference to the Boyce principles as now explained or refined by the High Court, for example, in the Australian Conservation Foundation case (above). Where the relevant claim for standing is under a particular enactment such as the DAA Act, that legislation will provide guidance for what interest or what degree of affection is necessary to grant standing."

In the submissions for the appellant it is said since the tribunal only has jurisdiction to hear matters referred to it by particular Acts (AAT Act s 25). This statement of the primary judge applies to all matters under the AAT Act so that standing is more restrictive under that Act than under Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") or at common law.

In my opinion when his Honour addressed "a general right of review" he was addressing such a right as it appears in the ADJR Act s 5 as well as when it appears in the AAT Act (s 27). There is no basis for reading this portion of his Honour's reasons in the manner contended for on behalf of the appellant.

Nolan's case

Before the Tribunal the applicant was one of two persons pursing the application for review. The other was a Mr Nolan. He also wished to appeal from the Tribunal's decision but failed to do so within the time prescribed and sought an extension under s 44(2)A of the AAT Act. It was refused by Goldberg J. The grounds for the refusal were, firstly, that the case for exercising the discretion to extend time was not made out and, secondly, there appeared to be no prospects of success on the merits. This second ground was supported by a finding that "the connection between Nolan's project and the Melbourne City Link project is tenuous in the extreme and too remote to give the applicant a basis for saying he is affected by" the decision of the DAA. In addition Goldberg J approved certain submissions by counsel for the DAA. In his judgment, the primary judge said his reasons reflected the observations of Goldberg J.

Goldberg J's judgment was ex tempore and the issues before him fall for re-determination in argument in this matter and cannot be governed by that conclusion. In any event there appears to have been a factual basis upon which it could there be concluded that there was no special interest possessed by Nolan and specifically no case for arguing special interest in the form of special damage as contended for by the appellant.

Construction of ss 119 and 120 of the DAA Act

The grounds of appeal and the submissions for the appellant in support alleged the primary judge erred in inferring from ss 119 and 120 of the DAA Act a legislative intention to exclude the appellant from the review process because he was not an applicant.

As to the primary judge's reliance on the omission of the word "revoke" from s 120, it is the case that if the DAA, following a request for reconsideration, decided it had erred in granting a certificate, it could vary the original decision to grant a certificate by replacing it with a decision not to grant a certificate. The decision having been varied, not revoked, the original certificate holder would retain the right to take the matter to the AAT under s 120(1). The absence of any express obligation on the DAA to notify the certificate holder would be superfluous.

Additionally, it is contended for the appellant, and not disputed on behalf of the respondent, that the respondent conceded before the Tribunal that at least one other class of persons would have standing to seek a review of a decision to grant a certificate. That class includes a later applicant for tax concessions who misses out because a direction is given not to accept further applications pursuant to s 93Y(2) of the DAA Act. It was accepted by the respondent that such a person would have standing to challenge prior certificates which had utilised the amount available for expenditure in a given year.

Furthermore, ss 119 and 120 were introduced in 1992 as part of the original DAA Act whereas the infrastructure borrowing scheme (Ch 3) was inserted by amendment two years later. Those two sections cannot therefore have been intended at the time of enactment to limit the class of review applicants under Ch 3.

Further, the reliance on limitation by inference is at odds with an oft utilised Parliamentary technique of express limitation.

In my opinion, these additional considerations have the result of showing the inference drawn by the primary judge from ss 119 and 120 was not a necessary one. In any event, and more fundamentally, the circumstances of alleged special damage were required to be considered along with the circumstances of statutory provision . There is nothing in the relevant statutory provisions which precludes proper consideration of that damage.

It should be added the fact the appellant has no right to be heard or notified by the respondent does not result in a failure by him to attain standing. A person may have standing to challenge a decision without also having the right to be heard in relation to its making: R v Ludeke, ex parte Customs Officers Association of Australia [1985] HCA 31; (1985) 155 CLR 513 at 528; cf Botany Bay City Council & Ors v Minister for Transport and Regional Development & Ors (1996) 137 ALR 281 at 310-311; Western Australia v Bropho (1991) 5 WAR 75 at 91.

Remoteness and affection

The principal grounds in the submissions in support of the appellant's case address the conclusions of his Honour that "the decision to grant the certificate immediately and directly affected the applicant [the appellant]".

In reaching that decision the primary judge relied upon what was said by Brennan J in Re MacHattan and Collector of Customs (1977) 18 ALR 154 at 157:

"However, a decision which affects the interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of s 27(1). The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interest are in truth affected."

This statement was relied upon by the court in US Tobacco referred to by Davies J in Alphapharm at 259.

It is contended the primary judge erred by misunderstanding the statement of Brennan J in McHattan in that he did not recognise that if a decision does not affect a person directly, the result is the person does not necessarily lack standing and may succeed in establishing standing if he or she can produce evidence showing his or her interests are "in truth affected". A reading of the reasons of the primary judge does not show he erred in his understanding of what had been there said by Brennan J.

In my opinion however, he did err in his application of the test to the facts before him and did so in the following respects. Firstly the decision, by creating the ability by financing the project, gave life to the decision to proceed with the City Link project. It is that project which the appellant claims will harm his interests. A direct effect of the decision is the City Link project will proceed with the consequent effect of potential for special damage to the appellant. The special damage lies within the point in the pool of sundry interest at which the affection is not remote.

Secondly, there is an interference with a public right involved if the appellant is correct in his contention that the provisions of subs 93O(2) have not been complied with.

Thirdly, I do not consider his Honour was correct in concluding that, even applying the test of standing by Buckley J in Boyce without regard to the terms of the DAA Act, the applicant lacked standing. The decision, by providing the life blood of finance to the City Link project, is one in relation to which the appellant has shown that he has an interest greater than other members of the public. He has a relevant special interest as a consequence of the alleged special damage which he would suffer as a consequence of the project proceeding.

It is no answer to the appellant's standing to claim, as the case for the respondent does, that the appellant is only one of thousands, or possibly hundreds of thousands, of persons who may be similarly affected by the construction of the City Link project. In Onus at 75 Brennan J said:

"Whether a plaintiff has shown a sufficient interest in a particular case must be a question of degree, but not a question of discretion. ...It is also material to consider whether the plaintiff has shown so distinctive an interest that his action to enforce the defendant's public duty is likely to avoid a multiplicity of actions (cf. Iveson v Moore [1792] EngR 1220; (1699) 1 Ld. Raym. 486 [91 E.R. 1224]). At least the plaintiff must be able to show that success in the action would confer on him - albeit as a member of a class - a benefit or advantage greater than the benefit or advantage thereby conferred upon the ordinary member of the community; or alternatively that success in the action would relieve him of a detriment or disadvantage to which he would otherwise have been subject - albeit as a member of a class - to an extent greater than the ordinary member of the community."

The appellant satisfies this test. Furthermore, there is no evidence to support the scope of the contention for the respondent.

In my opinion, the appellant succeeds on the primary ground that there was error in the conclusion of the primary judge the appellant was not a person affected by the decision. For these reasons I consider the appeal should be allowed and other orders made as proposed by Wilcox J.

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON

Associate:

Dated: 27 February 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 496 of 1997

BETWEEN:	PETER ALLAN AppELLANT
AND:	DEVELOPMENT ALLOWANCE AUTHORITY Respondent

JUDGES:	WILCOX, R D NICHOLSON AND FINN JJ
DATE:	27 february 1998
PLACE:	sydney

REASONS FOR JUDGMENT

FINN J: I have had the advantage of reading the reasons for judgment of both Wilcox J and R D Nicholson J. I am in substantial agreement with them. I agree with the orders proposed.

I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 27 February 1998